State Ex Rel. Foust v. Stafford

70 N.C. 115

• Court: Supreme Court of North Carolina
• Decided: January 5, 1874
• Status: Published

Opinion

Settle, J.

This is an action upon a sheriff’s bond, in which he and his sureties are sought to be held liable, for his failure to collect, under a fi. fa., placed in his hands, a debt of $313.50 with interest and costs, due by judgment from T. G. Wharton and David Coble, the defendants in the execution, to the relator.

It appears, from the complaint in this action, that at the time of the rendition of the j udgment against Wharton and Coble, the defendant Wharton was wholly insolvent, and that he has continued so ever since -; and further, that Coble soon thereafter became whollly insolvent; but it is insisted that “ by the want of due diligence, and by the reason of the negligence ” of the -defendant Stafford, the relator has lost his debt.

The- defendant Stafford admits that when the execution came into his hands, the money might have been made out of at least one of the defendants, but he avers that the execution was withheld, and indulgence given, by the direction of the relator.

Upon these pleadings, the parties go the jury, who find all issues in favor of the defendants.

So we are to take it that the defence relied upon is true, and'* if so, it was a complete defence, and the verdict should not have been disturbed.

But the plaintiff moved his Honor for a-new trial, upon the ground that the jury had not given nominal damages, in accordance with the instructions of the Court, and thereupon his Honor, as appears from the judgment which he signed, .and whieh is sent by counsel who settled the case to this Court, “ being satisfied that the relator, according to the charge of the Court, was -entitled to a verdict for nominal damages, and no more';” permitted the defendant to pay a penny and the costs, and overruled fhe motion fora -new trial.

Thereupon the plaintiffs appealed. There is no assignment of errors, in the charge of his Honor, and, as already said, as far as we can see from the ease agreed by counsel, he might have well refused to disturb the verdict in any manner.

However, since he did so, and the plaintiff was still dissatisfied, the charge of his Honor should have been set forth, or at least there should have been some assignment of errors, in order that this Court might pass intelligently upon the case.

Upon the reeord before ns, we must say that there is no error. \

Pee Cueiam. Judgment affirmed.